TSA Pat-Down Procedures Survive 1st Cir. Scrutiny

(CN) – The 1st Circuit rejected a challenge to airport scanning procedures brought by a woman whose metallic joint implant treats her to a full pat-down with every flight. Mary Beth Ruskai has a metallic replacement joint, which makes her unable to pass through the standard metal detector at an airport Transportation Security Administration (TSA) checkpoint without setting off the machine. She petitioned for court review of the TSA “order” that subjects her to such scrutiny, but the Boston-based 1st Circuit ruled for the government on Dec. 23. “Planes blown out of the sky in Russia and attempted bombings on U.S. airliners in recent years have warned TSA that its screening procedures must be capable of detecting both metallic and nonmetallic weapons,” Judge William Kayatta wrote for a three-judge panel. Ruskai’s job requires her to travel frequently, and many airports still use walk-through metal detectors, rather than the advanced-imaging technology (AIT) scanners that can detect weapons on clothed passengers without triggering for metallic implants. In these airports, Ruskai cannot fly without undergoing a standard pat-down, which entails a TSA agent touching the underside of her breasts, feeling inside her waistband, and running a hand up the inside of her thigh to her groin area. She claims this procedure is “stressful,” “invasive,” and “extremely unpleasant.” Kayatta noted that, “while many people may have less sensitivity to the indignities of the search, certainly Ruskai is not unusual in finding it invasive and disturbing, as has been made very clear to TSA at, among other things, congressional hearings.” Ultimately however this required pat-down does not amount to an unreasonable search, nor does it discriminate against persons with disabilities, the court found. “Ruskai does not argue that no one should be screened by a standard pat-down,” Kayatta wrote. “Rather, she says that the standard pat-down should only be employed when there exists a suspicion that the particular person to search may pose an atypical risk of having a nonmetallic weapon. In our view, in the context of administrative or special needs searches, the Supreme Court has not required the degree of precision tailoring advocated by Ruskai.” The court noted that both Congress and the TSA seem to agree with Ruskai that the use of metal detectors is unacceptable in the long run – hence the expansion of AIT scanning to address the increasing threat of nonmetallic explosives. “There is in this record admittedly some flavor of bureaucratic inertia,” Kayatta wrote. “Given the pertinent threats, however, it seems that the inertia tends to result more in inadequate screenings than in excessive screenings.” The court emphasized that the TSA is clearly in a period of transition between technologies, and the delay is understandable given the TSA’s “daunting” task.” While the metal detectors certainly single Ruskai and others with metal implants out for pat-downs, this unequal treatment is “by effect rather by design,” and is an issue the TSA is attempting to address, the court found. In addition, Ruskai’s complaints about the pat-down procedure would be no different were she not disabled. “The aspects of that screen of which Ruskai complains affect persons with and without disabilities alike,” Kayatta wrote. “And, once TSA determined she carried no weapon, that very determination gained her access through the checkpoint irrespective of any aspects of her disability. Collectively, all of these considerations eliminate the footings upon which a section 504 claim can stand.”